MISS A B HOGBEN v ROLAN LONG ADVERTISING LTD [2001] UKEAT 276_01_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 276_01_1806Case No Appeal No. EAT/276/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS A B HOGBENAPPELLANTROLAN LONG ADVERTISING LTDRESPONDENT
Before
Mr Justice LindsayLord Gladwin of CleeDate 18 June 2001
[1]APPEARANCES For the Appellant MR DAVID WARD (Representative) Community Legal Services Bournemouth CAB West Wing Town Hall Bournemouth BH2 6DX MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of Miss A B Hogben in Hogben v Rolan Long Advertising Ltd. On 14 August 2000 Miss Hogben launched proceedings by way of presenting an IT1 for breach of contract, Working Time Regulations and wrongful dismissal. She claimed to have been employed only from 5 July 1999 until 17 May 2000. She filled in the form to indicate that she had a representative, Mr David Ward, at the Community Legal Advice Service at Bournemouth Citizens Advice Bureau and Mr Ward has also appeared for her today.[2]The claim was, it seems, that, in breach of contract, Miss Hogben had been required to work overlong hours which had caused her stress and, in turn, had caused her to take sick leave and, ultimately, had led, she said, to her wrongful dismissal. On 30 August 2000 Solicitors wrote to say that Miss Hogben had identified the wrong employer; she had not been employed by the respondent completed in the form and, in any event, the IT3 enclosed defended her claims on the merits and also the argument was raised that the claim was out of time. She had been dismissed, said the respondent, not on 17 May 2000 but on 17 April which, in turn, meant that the IT1 was more than three months after the events complained of.[3]On 5 September the parties were given notice of hearing for 26 October 2000 in order to deal with the preliminary issues that had been raised: who was the correct respondent and was the application out of time and, presumably also, if it was out of time, whether time could be extended under the relevant section?[4]It seems the Citizens Advice Bureau (CAB) wrote to Miss Hogben explaining the position. There is no doubt that she got this explanation from the CAB before she went away. But thereafter it seems she went away until the day before the hearing, as we shall come on to. It seems she left no forwarding address or other means by which her advisers, CAB, could contact her in the meantime. But there is no doubt that when she went away, shortly after 7 September or perhaps even on 7 September, that she knew that the hearing was fixed for 26 October.[5]On 25 October, the very day before the hearing fixed for 26 October, Miss Hogben contacted the CAB for the first time for a while and indicated that she wished to withdraw her claims. In the meantime, on 17 October the CAB had written to the Employment Tribunal (but not, it seems to the respondent) to indicate that they had had no contact from their "client" and that they were withdrawing representation for her. On 25 October Miss Hogben returned to the area where she habitually resided and had a conference with the CAB and said that she had been away from home because she had been too ill to look after herself and that she had returned that day, 25 October, because she knew that the hearing was for the next day.[6]The hearing did not take place on 26 October as fixed because, having had a conference with her, the CAB indicated that the claims made by her in her IT1 were withdrawn. There is no record of an actual hearing on 26 October. Presumably her claims were simply dismissed on withdrawal. But on 30 October the respondents launched a request that there should be a hearing to deal with costs thrown away.[7]On 5 January 2001 there was a hearing before the Chairman alone. The respondents' solicitors applied for costs. The Chairman's Extended Reasons - they are the reasons of Mr M Craft - sent to the parties on 11 January 2001, say at paragraph 4:
"Mr Furber, on behalf of the Respondent, made application for costs limited to £500.00. He asserted that he had been involved in preparation for the preliminary hearing and that the Applicant had both brought and conducted the proceedings unreasonably and so incurred unnecessary costs for the Respondent particularly by her late withdrawal of her claim on 25 October."
There was some countering of that on Miss Hogben's behalf by Mr Ward who submitted - we are looking at paragraph 5 of the Extended Reasons - that the applicant could have sought leave to proceed with the claim out of time and that the reasons for withdrawal were personal being related to the applicant's illness.[8]So far as medical evidence is concerned, the position seems to be that the bundle of papers included a letter from Miss Hogben's General Practitioner. It is not entirely clear whether that letter was actually read to the Tribunal but it was, in any event, somewhat out of date in the sense that it was a letter of 10 August and spoke about Miss Hogben's condition over the past month, namely, presumably, the month down to 10 August. It said that she had had a lot of medication such that she could perhaps not be expected to behave as she normally might and that stress was a matter of which she complained. But that, of course, was not useful medical evidence, even if it had been fully laid in front of the Tribunal, because there was nothing that suggested that there was something recent or new reasons why the case should not have been withdrawn earlier than it had been on 25 October. The Tribunal continued as follows:
"It is always necessary for an Employment Tribunal to balance the needs of accessibility and informality for Applicants who are not represented and reasonableness in the conduct of the proceedings. The Employment Tribunal considered the significant points here to be that the Applicant had received a detailed Notice of Appearance which raised the key time point and her late withdrawal of her claim. She had also, at various stages, had the benefit of advice from the CAB who the Employment Tribunal should record had conducted themselves professionally and properly throughout this matter on behalf of the Applicant. The Employment Tribunal was not persuaded that the costs wasted by late withdrawal were as much as claimed by the Respondent's solicitor, but, nevertheless, concluded that the Applicant had conducted the proceedings unreasonably by her late withdrawal and that the Respondent should be awarded costs for that unreasonable conduct of £200.00."
Hence the Chairman's order was:
"The Applicant had conducted the proceedings unreasonably. The Applicant is ordered to pay costs of £200.00 to the Respondent."
That decision, as I have mentioned, was sent to the parties on 11 January 2001 and on 20 February there was a Notice of Appeal that makes two points:
"A) The Tribunal failed to take into account the means of the applicant in assessing the award for costs. B) In deciding that the Applicant had conducted proceedings unreasonably by her late withdrawal, the Tribunal failed to determine why under the circumstances, the conduct was unreasonable (other than the lateness)."
[9]Now as to that first ground, the Tribunal's jurisdiction as to costs generally is under Employment Tribunal Rule 12. There is no obligation thereunder that the Employment Tribunal should take into account the payor's means. There is thus no error of law in failing to do so. That might be contrasted with the position under Rule 7(5). It is often of course desirable to look into the means of the prospective payor but it cannot be described as an error of law not to do so. As to the second point, the Extended Reasons make the unreasonableness quite obvious. Miss Hogben had received a detailed IT3 presumably in early September. On 6 or 7 September she was given notice of a hearing on 26 October. If she received notice of hearing direct from the Employment Tribunal, she would have got it round about 6 or 7 September. If she only had it by way of the CAB's advice on 6 or 7 September she would have got it on or about 8 September but, at all events, she had it in good time long before the hearing of 26 October. She didn't withdraw her claims until the afternoon of 25 October. There was, it seems, no evidence of some new factor, such as health, or otherwise that had caused the withdrawal but had caused it by arising only shortly before 26 October.[10]On the face of things, as far as the Employment Tribunal was concerned, there was no reason why the claim could not have been properly withdrawn earlier and on that basis it seems to us that the Tribunal could properly proceed on the basis that it had been unreasonable on her part not to have withdrawn earlier and thus to have saved the respondents from going to the unnecessary expense of preparing for trial on 26 October.[11]It is not, of course, of any relevance at all whether we would have paid more attention to the medical side than the Employment Tribunal did; the question for us is whether an arguable error of law can be identified by Mr Ward. The discretion given to the Employment Tribunal as to costs is largely unfettered once they are in a position (which, in our view, they properly were in) that they could be of the opinion that the paying party had acted unreasonably in the conduct of the proceedings. She had left around about 8 September or so from her habitual residence knowing that there was a hearing on 26 October and yet making no arrangements by which she could be contacted in the meantime by her own advisers, nor, indeed, contacting them herself relevant to the hearing.[12]Once one gets into a position which the Employment Tribunal could properly conclude that she had acted unreasonably in the conduct of the proceedings, then it is quite exceptionally difficult for an appellant to show an error of law and we are unable to find any arguable error of law and, accordingly, we dismiss the appeal even at this preliminary stage.